Grant v. Rossander Date:, 2017 BCPC 308

Citation: Grant v. Rossander Date: 20171019 2017 BCPC 308 File No: C6644 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: J. JORDAN GRANT CLAIMANT AND: STEVE ROSSANDER and DENISE ROSSANDER DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Appearing on their own behalf: J. Grant Appearing on their own behalf: S. Rossander and D. Rossander Place of Hearing: Colwood , B.C.

Date of Hearing: June 6, 13, September 19, 2017 Date of Judgment: October 19, 2017 I. Introduction [ 1 ] At issue in this trial is a dispute over monies owing for work performed on a home renovation project. [ 2 ] In late October, 2014, Jordan Grant entered into an agreement (the “Contract”) with Steve and Denise Rossander to renovate their home (the “Main House”) and an adjacent building (the “Coach House”). Though there is no single contract document, the parties agree they fixed upon the price of the Contract and the scope of work which is drawn from several documents. Another important contract document is the Draw

Schedule agreed to by the parties. [ 3 ] Mr. Grant performed work on the Contract from October 2014 through to the end of June 2015 when it was terminated by the Rossanders who were dissatisfied with Mr. Grant’s progress and with at least some of his work. In turn, by June 2015, Mr. Grant was distressed that the Rossanders had not paid him in accordance with the Draw Schedule. The relationship, which had been soured for some time, ended badly. [ 4 ] In this trial, Mr. Grant seeks payment for his work on both the Main House and the Coach House totalling $36,126.47. The Rossanders do not seriously disagree that Mr.

Grant is entitled to be paid for his work. However, they submit that when other costs are taken into account, Mr. Grant owes them money. The Rossanders have filed a counter claim seeking damages in the amount of $37,043.37 for the cost to complete the work not completed on the Contract, the cost of delay, loss of revenue, and the cost to rectify deficiencies in Mr. Grant’s work. II. The Issues [ 5 ] The first issue in this case is whether Mr.

Grant is entitled to the damages claimed for work performed or whether at least some of his claims for “extras”, or work done outside the scope of the Contract, do not qualify as such. In addition, it must be determined whether Mr. Grant has accounted for all of the deductions the Rossanders maintain must be taken off the Contract price pursuant to the agreement of the parties. [ 6 ] The Rossanders’ counterclaim gives rise to the question whether Mr. Grant was in fundamental breach of the Contract so as to justify their decision to terminate the agreement.

If so, the Rossanders seek substantial compensation for the breach. [ 7 ] Even if the Rossanders do not prove fundamental breach, they allege also that Mr. Grant must compensate them for the cost to repair what they allege are significant deficiencies with his work. Mr. Grant takes issue with many of the deficiencies claimed by the Rossanders, so the evidence must be examined to determine whether these claims have been made out on balance. III. An Outline of the Claim and Counterclaim [ 8 ] Mr.

Grant seeks damages arising out of what he alleges is a breach of contract by the Rossanders for failing to pay him for work done on the Contract in accordance with the Draw Schedule. [ 9 ] It is clear the parties agreed to a Draw Schedule, and it is also clear that Mr. Grant sought and was not paid in accordance with the

Schedule even as he continued work on the project. In response to Mr. Grant’s repeated requests for payment in accordance with the Draw Schedule, the Rossanders took the position that he was owed nothing. [ 10 ] For much of March, April and June 2015, the parties were engaged in a dispute over billing which is unsurprising given that by this point, Mr. Grant was billing for work on the Contract and for extras in both the Main House and the Coach House. At the same time, the Rossanders were seeking to deduct from the Contract price the value of items they had purchased but which had been included in Mr.

Grant’s estimate such as carpets and plumbing fixtures. [ 11 ] The Rossanders were also focusing on deficiencies in the Main House, miscommunication on work in the Coach House, and the cost to replace or repair a broken wall oven. I should add that the Rossanders were at all times during their engagement of Mr. Grant, pressed for time and anxious that the renovation work be done quickly but of such quality that the work did not appear to be a renovation. [ 12 ] Mr. Grant’s case is, as he stated at trial, simple: he seeks to be paid for work performed under the Contract. Mr.

Grant is entitled to be paid for his work: the only question is in what amount? To determine that, this court must decide, among other things whether, as the Rossanders claim, some of what is charged as extra work is actually included within the scope of work in the Contract. In addition, the Rossanders’ claim for deductions to the price of the Contract must also be taken into account in determining what is owed to Mr. Grant. [ 13 ] The Rossanders’ counterclaim for the cost of repair of the various alleged deficiencies has a bearing on Mr.

Grant’s claim for compensation in that to the extent the deficiencies are proven, the cost of repair must be deducted from any compensation awarded to Mr. Grant. Still, the deficiencies form part of the counterclaim, and Mr. Grant is not obligated to disprove them in order to make out his claim. [ 14 ] Mr. Grant has framed his claim as one for damages for breach of contract, but the remedy he seeks is merely payment on the Contract for work performed up to the point the Contract ended.

The manner in which the Contract ended is significant for both parties and underlies what is a substantial claim for damages by the Rossanders. If the Rossanders are correct, whatever may be owed to Mr. Grant for work performed under the Contract would be entirely offset by the costs to the Rossanders of delay and for the completion of the work remaining within the scope of the Contract.

[15] It is for this reason that I will deal with the Rossanders’ counterclaim for these damages before addressing what may be owed toMr. Grant for work performed up to the termination of the Contract. IV. The Rossanders’ Counterclaim [16] In late June 2015, the Rossanders effectively terminated the Contract for two reasons given around that time: first, that Mr.Grant did not complete the Contract by the end of January 2015, and secondly, because of the poor quality of the work and the variousdeficiencies.

To determine whether this termination was lawful, it is necessary to ascertain the terms of the Contract. [17] The Contract, as the parties have presented it in this trial, is a fixed-price bargain for work specified by the Rossanders. Mr.Grant utilized the specifications to provide an estimate and that estimate was accepted by the Rossanders. Various clarifications weremade to the deal after the fact so that ultimately the Contract is made up of the Rossanders’ specifications and Mr. Grant’s estimatecoupled with his clarifications which were accepted by the Rossanders. These documents and the Draw

Schedule constitute theContract. [18] There is nothing in the written contract documents regarding the date for completion. While timing was discussed, and while itwas clear the Rossanders were anxious that the project complete, there is no express completion date in the Contract documents or aterm, for example, that “time is of the essence.” As a general matter, in the absence of such a term, the courts will not imply that time isof the essence. [19] Still, in Bachman v. Woodpecker Hardwood Floors

(2000) Inc., 2008 BCPC 425, Judge Ball, as he then was, wrote that evenwhen a contract does not contain specific words that time is of the essence, there may be an implied term to that effect. Quoting fromBaker J. at para. 65 of Greenside Properties Inc. v. 8458429 Holdings Ltd., [1996] B.C.J. No. 532, Judge Ball noted at para. 45 of hisreasons that: Where time is not of the essence, it may be initiated by a party giving notice and specifying a date for performance of the contract whichis reasonable in all of the circumstances. [20] Moreover, as Judge Doulis noted in McCrea v.

Fournier, 2017 BCPC 30 at para. 79, the law implies certainobligations to parties to a building contract: [79] …In Goldsmith on Canadian Building Contracts, 4th ed (Toronto, ON: Carswell, 2009), the learned authors state at 1-43 and 1-44: Canadian Building Contracts ...

Thus, in a building contract there is, in the absence of any express provision, an implied term that the owner will make the paymentsdue under the contract, and will do everything reasonable to enable the contractor to complete the work, such as making available the siteand any required plans within a reasonable time and refrain from any interference with the contractor’s work which may cause delay orextra cost in his completion of the work. In the absence of a specific completion date, it is implied that the contractor must finish thework in a reasonable time.

There is an implied term on the part of the contractor that he will perform the work in a workmanlike anddiligent manner, and that any materials supplied by him will be fit for use as intended…[emphasis added] [21] In the case at bar, the parties verbally settled on various time estimates. Whether any one of these was contractually bindingsuch that the termination for failure to meet the deadline was lawful is another question and depends on the circumstances.

Thecircumstances I find relevant in this case begin with the parties’ negotiations and end with the Rossanders’ termination letter. [22] The parties’ working relationship began in or about October 2014, when the Rossanders sought a quote from Mr. Grant forrenovation work on the Main House and the Coach House. The Rossanders had only recently purchased the property. Their intentionwas to occupy the Main House with their children. They hoped to be able to do so by Christmas. They intended to renovate the CoachHouse, which was originally a garage, for use as a living unit ultimately for Mr. Rossander’s parents.

They wanted the renovation workon the Coach House done quickly as well. [23] The Rossanders had met with Mr. Grant on a previous construction project. Mr. Grant is an experienced contractor whoobtained all of his work to that date by word of mouth. [24] To prepare his bid for the project, Mr. Grant was provided with what the parties sometimes referred to as “scope of workdocuments” supplied by the Rossanders.

His estimate for the renovation work was based on these documents which are basically theRossanders’ specifications for work to be done in the Main and the Coach House as well as the construction of the under slab area of theCoach House. [25] The estimate for the renovation work was split between the two projects and that in part, explains Mr. Grant’s separate claimswhich were, nonetheless, heard together. Utilizing these detailed documents, Mr. Grant gave a quote in the total amount of $136,245.90broken down as follows:

a) for the Main House: $46,998, plus $2,349.90 GST, for a total of $49,347.90;

b) for the Coach House: $82,760, plus $4,138 GST, for a total of $86,898. [26] That quote was accepted by the Rossanders by email dated October 29, 2014. Thus, the work and the cost of the work wereagreed to by the parties. [27] Even still, this agreement was followed up by various emails clarifying the quote including, for example, whether it includedcloset work in the estimate: it did not. Or whether the quote for the installation of tiling in the bath and kitchen included the supply of

tile: it did not. [ 28 ] From time to time the Rossanders pressed Mr. Grant for a more detailed contract, specifically, the sort of “full scope statement of work” promised by Mr. Grant in an email dated October 27, 2014, if the Rossanders accepted his bid.

Still, never having received such a document, the Rossanders continued with the Contract. [ 29 ] I find good reason for the Rossanders’ request particularly given the manner in which the parties’ contractual relations must be pieced together using the “specification documents,” various additional emails, other agreements such as payment schedules, which I will discuss in more detail shortly, as well as various alleged verbal agreements. [ 30 ] One such verbal agreement the Rossanders allege was made was one regarding a date for completion of the Contract.

Another is the agreement to reduce the value of the fixed-price Contract in instances where the Rossanders were able to source material themselves at a price less than that quoted in Mr. Grant’s estimate. [ 31 ] There is no question and Mr. Grant does not deny that at the outset, he estimated he would complete the Main House by early December and the Coach House closer to the New Year. That was ambitious and ultimately proved impossible for reasons I will discuss shortly. Still, the question is whether this was a term of the Contract such that Mr.

Grant’s failure to complete these projects in that time constitutes a breach on his part and, more importantly, a breach so fundamental as to justify the termination of the Contract. [ 32 ] Although I am sympathetic to the Rossanders particularly as they told Mr. Grant of their desire to be in the Main House by December, I regret I cannot find on the evidence in this trial that the parties had agreed on any certain date of completion that passed before the Contract was terminated. [ 33 ] I find, firstly, that Mr. Grant provided the Rossanders with an estimated date for completion.

With respect to the Main House, I accept the estimate was early December which date came and went. All the while, the parties proceeded as if that was an estimate. There is no sense that any of the parties gave any indication Mr. Grant would be held, or would hold himself, to an early December deadline. Among other things, in mid-November, the parties were still discussing the terms of the Contract. [ 34 ] With respect to the Coach House, while Mr. Grant estimated it would be done closer to the new year, I find it clear the parties did not intend that estimate to form any part of a binding agreement.

The time for completion of the work in the Coach House changed a number of times and for a number of reasons. The notion the Rossanders intended to hold Mr. Grant to a New Year’s deadline for completion of the Coach House is belied by their email request of January 13, 2015, to meet and discuss some of their ideas before he started work on the Coach House. [ 35 ] Although the Rossanders terminated the Contract on the basis that Mr. Grant had not completed the Contract work by the end of January 2015, there is no evidence of any agreement to meet this date of completion.

To the contrary, by email dated January 21, 2015, the Rossanders proposed a payment

schedule (the “Draw Schedule”) accepted by Mr. Grant that would see payment for work on the Coach House up to March 20, 2015. [ 36 ] I find also that, in large part, the work on the Main House for which Mr. Grant was responsible was completed well before the Rossanders took possession in March 2015. I accept Mr. Grant’s testimony, which went uncontradicted, that the main impediment to the Rossanders moving into their home before March was the fact that their kitchen was not complete. This was well outside the jurisdiction of Mr. Grant. I accept as well that though Mr.

Grant had not yet repaired the deficiencies identified in the Main House before the Contract was terminated, and even accepting that some painting as required by the Contract remained unfinished, the work on the Main House was substantially complete well before the termination of the Contract. [ 37 ] The larger concern for the Rossanders after the early part of 2015 was the completion of the Coach House. The Rossanders intended the Coach House to serve as a residence for Mr. Rossander’s parents who were due back from Mexico in late March. The Rossanders advised Mr.

Grant of this in the January 21, 2015, email. [ 38 ] Work was done on the Coach House from January through to late June 2015. Mr. Grant called two witnesses, Mr. Cameron McLeod, an electrical contractor, and Mr. Donald Campbell, a journeyman carpenter. Each testified as to their work on the renovation project. Mr. McLeod testified that he performed electrical work on the Main House and the Coach House. While he agreed he was unable to complete his work on the Coach House, he testified that it was substantially complete. Mr.

Campbell testified in direct that the renovation in the Coach House was substantially complete when he left the project. When asked on cross-examination what items he factored in in determining the level of completion, Mr. Campbell testified that he took into account things such as carpet installation, paint on the walls, cover plates over electrical outlets, and so forth. [ 39 ] This evidence went uncontradicted by the Rossanders. Even though, as Mr. Rossander adduced on cross-examination, Mr. Campbell has yet to be paid, I find I accept the testimony of Mr. McLeod and Mr.

Campbell that for the most part, renovation work on the Coach House was substantially complete when each last attended at the site. [ 40 ] Mr. Grant testified that what was left undone at the Coach House was the kitchen cabinets. It was, he testified, at this point that the Contract was terminated. [ 41 ] Before that point, Mr. Grant sought payment in accordance with the Draw

Schedule to no avail. In an email dated March 24, 2015, Mr. Grant advised the Rossanders that payment on Draw 3 was due immediately. The Draw

Schedule provided that Draw 3 would be paid on February 13, 2015. In reply, the Rossanders disputed that the level of work for Draw 3 had been completed. By email of the same date, Mr. Grant proposed a revised draw

schedule that would see Draw 3 payable immediately, Draw 4 payable by April 8, 2015 and Draw 5 by April 17, 2015. The Rossanders rejected the revised draw

schedule and asked instead that Mr. Grant provide them with a project

schedule showing “all tasks, starts and end dates, duration, dependencies, and who is responsible (or assigned) to the task... “ [ 42 ] Clearly such a

schedule was not provided. Mr. Grant was asked by Mr. Rossander at trial whether such a

schedule was possible

and while Mr. Grant agreed it was possible, he added he knew of no one who provided a date for the completion of every single line item in a project. As a practical matter, I find I agree with Mr. Grant: such a contract could be agreed upon but it would not have been fair nor possible to force it on Mr. Grant. [ 43 ] Still, there can be no question that while the renovation in the Coach House was substantially complete, as I find on the evidence, it was not complete and it was not ready for occupation by Mr. Rossander’s parents.

This did work a hardship on the Rossanders who had to install a storage unit on their property to store personal belongings. Mr. Rossander’s parents, who had arrived home from Mexico at the end of March 2015, had to take up residence in the Main House. [ 44 ] Unfortunately, the Rossanders were engaged in a dispute with Mr. Grant over the glass shower door in their en suite . While the matter remained unresolved, the Rossanders declined to use the en suite with the result that six people were sharing two bathrooms.

Moreover, the Rossanders were financing the renovations and the delays in completion interfered with their ability to re-mortgage. [ 45 ] Though I sympathize with the Rossanders as their distress would have been evident, I cannot find the cause of the delay lay solely with Mr. Grant, or that his failure to complete the Coach House at the end of January 2015, constituted a fundamental breach of the Contract. [ 46 ] Mr. Grant concedes that he estimated he could finish renovations in the Coach House by early January 2015. Clearly neither party intended that to be binding.

In late January, the Rossanders proposed a Draw

Schedule that would see the project complete at the end of March 2015. In the interim, the parties agreed to extras on the Coach House project, as they had previously for the Main House. Mr. Rossander’s own father engaged Mr. Grant with respect to changes in the Coach House and those suggestions resulted in more confusion and discussion between the parties. [ 47 ] By the end of March 2015, the parties were engaged in a dispute over Mr. Grant’s invoices. At some point, the Rossanders paid Mr.

Grant $10,000 after refusing to pay Draw 3 on March 24, 2015, but it is clear by the emails of June 2015, that there were outstanding issues around payment for the work. I have found that by the time the Contract was terminated work on the Coach House was substantially complete but for the installation of the kitchen cupboards and various details around that work. [ 48 ] Though the Rossanders knew they had subtractions to the price of the Contract, they did not have an accounting from Mr. Grant of the extras on either the Main House or the Coach House.

They assumed they would owe him little if anything but they did not know that to be the case. Time was lost on these disputes, but it is not entirely the fault of either party. [ 49 ] As late as April 28, 2015, Mr. Grant was looking for payment in the amount of $29,498.95 for work performed. In reply the Rossanders asked for an invoice for the wall oven and for confirmation of the amount remaining owing on the fixed-price Contract. This was not in any way responsive to the obvious fact that Mr.

Grant needed to be paid and would need to spend more money as he advised in his April 28 email to continue towards completion. [ 50 ] In an effort to force a completion date, the Rossanders wrote to Mr. Grant by email dated June 23, 2015, setting out two options: either Mr. Grant completed the project by July 15, 2015 after which he would be paid, or the Rossanders would conclude he chose not to complete and would contract out the remaining work and charge Mr. Grant for the excess cost, if any. [ 51 ] Mr.

Grant replied by email of the same date indicating he was owed $30,000 but would agree to their “path 2” (though he clearly means their path 1) if the parties could come to some level of agreement on compensation prior to total completion. Ultimately, by email dated June 24, 2015, Mr. Grant agreed to the mid July date for completion with the exception of the granite work. He notified the Rossanders they would be billed for every task completed outside the scope of work, from which they could deduct their contributions for materials and $1,500 as he had promised previously for rental income. [ 52 ] Mr.

Grant’s bill for extras was forwarded to the Rossanders by email dated June 29, 2015. In it Mr. Grant listed various change orders or “extras” in the Main House totalling $12,801.78. He wrote that “given the above figures and the current holdback for the main house of $4,669.80, the balance owing on the main house is approximately $17,501.58, plus GST on part of that figure.” The actual total of those two amounts is $17,471.58 which is the figure I will be using moving forward in my reasons. Mr.

Grant further advised he would provide a breakdown of the change orders for the Coach House but expected to be paid in full when the Main House deficiencies were rectified. [ 53 ] The Rossanders replied by email of the same date instructing Mr. Grant to complete work only on the deficiencies at no additional cost to them and to do no more. A formal termination letter setting out the reasons for termination was sent by email dated July 7, 2014. [ 54 ] The question in these circumstances is whether the Rossanders were lawfully entitled to impose a deadline on Mr.

Grant such that his refusal to accept that deadline amounted to a fundamental breach of the Contract justifying its termination. In considering this, I bear in mind the Rossanders’ notice of termination indicated, firstly, that they considered Mr. Grant to have been in breach of contract for failing to complete by the end of January 2015 and, secondly, for poor quality workmanship. In no way did the parties agree on a completion date of January 30, 2015. [ 55 ] For that reason alone, the counterclaim could be dismissed.

But even accepting that the Rossanders were in a position to impose a “time is of the essence” clause in or around late June 2015, the specified date for performance has to be reasonable in all the circumstances. [ 56 ] Those circumstances, in my view, include terms of payment. I do not find it reasonable in the circumstances that the Rossanders would unilaterally require completion without pay in accordance with the Draw

Schedule or any draw schedule. As Mr. Rossander testified, he and Mrs. Rossander did not want to be one of those home owners that paid first and got nothing. At the same time, Mr. Grant did not want to be one of those contractors that performed work and got nothing. [ 57 ] Once the parties reached a stalemate on payment on the Draw Schedule, work on the Contract should have stopped until the

matter was resolved. It did not and work did continue and was substantially complete with payment issues unresolved. In those circumstances, I do not find it was reasonable for the Rossanders to demand a completion date and to unilaterally determine payment would not be made until the Contract was complete. [ 58 ] For this reason alone, I find the termination of the Contract by the Rossanders was not justified.

I will address the claim regarding the quality of work and the defects in the context of the termination only briefly as I find it does not bolster the argument for termination. [ 59 ] In their termination letter dated July 7, 2015, the Rossanders refer only to poor quality work and defects; none are specified. At trial, the Rossanders presented a deficiency log totalling 33 items. For reasons I will discuss shortly, I find the Rossanders have not discharged their onus to prove a number of the alleged deficiencies.

The remainder of the deficiencies which I am satisfied are proven are for the most part trifling and do not support a claim of fundamental breach of contract. [ 60 ] I have found the Rossanders lacked sufficient grounds to terminate the Contract. I am not satisfied that Mr. Grant was at any time contractually obligated to complete on a particular date. There was delay on the project to be sure but neither party is fully responsible for the delay.

As such, I would dismiss the Rossanders’ claim for damages for delay as well as for the cost to complete the Contract. [ 61 ] That disposes of the counterclaim in large part. I intend to address the Rossanders’ claims for damages for rectifying the deficiencies later in these reasons after I address Mr. Grant’s claim for payment for work performed on the Contract in conjunction with the Rossanders’ claim for a deduction of the Contract price to take into account materials they purchased. V. Mr. Grant’s Claim for Breach of Contract [ 62 ] Mr.

Grant has filed two claims: one for payment for work performed pursuant to the Contract on the Coach House and the other for work outside the scope of the Contract performed on the Main House. In all, Mr. Grant seeks damages totalling $36,126.47. As I noted previously, these matters are joined for the purpose of this trial. [ 63 ] The Rossanders take issue with Mr. Grant’s claims for several reasons. They submit, first, that a number of the extras Mr. Grant has charged to the work on the Main House are actually within the scope of work in the Contract. Second, the Rossanders submit that whatever is owed to Mr.

Grant for extra work must be reduced by the value of materials they supplied (and by the cost of repairing the deficiencies in both the Main and the Coach House - a matter I will address below). Finally, the Rossanders submit that Mr. Grant has not entirely identified the basis for his claim for payment for work on the Coach House in the amount of $17,397.81. The claim for extras in the Main House [ 64 ] As the working relationship between the parties neared its end in late June 2015, the Rossanders provided Mr.

Grant with a list of materials they had purchased that would serve to reduce the value of the fixed-price Contract. In return they required Mr. Grant to provide a list of extras claimed. In an email dated June 29, 2015, Mr. Grant provided that information; it was, it seems, the catalyst for the termination of the Contract by the Rossanders. [ 65 ] In that email, Mr. Grant listed a number of extra work items totalling $12,801.78. When the holdback for the Main House was added, Mr. Grant calculated the Rossanders owed him $17,471.58 plus GST on some of that figure.

He advised that he expected payment in full when the Main House deficiencies were rectified. [ 66 ] At trial, the Rossanders presented a spread sheet, one of several, wherein Mr. Grant’s extras were reviewed line by line along with comments either agreeing with or disputing the claimed amounts. In that same spread sheet, the Rossanders included the cost of items which they maintain must be subtracted from the cost of any extra work this court finds was performed by Mr. Grant. [ 67 ] Some of the disputed items are small, having a value of less than $50. Others are significant.

The main items in dispute in respect of the charge for extra work on the Main House include charges for the tub and filler, shower control valve, and flooring. [ 68 ] I agree with the Rossanders that the tub and filler and shower control valve are items included in the original scope of work. Still, the change order with respect to the tub and filler cost Mr. Grant an extra $195 over the estimated price, and I find he is entitled to that. [ 69 ] The Rossanders dispute $861 of Mr. Grant’s charge of $4,125 for flooring upgrades. What appears to have occurred is Mr.

Grant miscalculated his floor measurements when giving his estimate for this part of the flooring by some 80 square feet. On December 3, 2014, Mr. Grant sent the Rossanders a note regarding additional expenses, including a bill for the flooring upgrade in the amount of $4,215. He explained, subsequently, that it had to do with his measurement error. In an email dated December 8, 2014, Mrs. Rossander objected to the additional charge stating the couple had made their decision to go ahead with the flooring based on the quote provided. Mr.

Grant agreed to bear the additional cost in which the material alone was over $400. As such, Mr. Grant’s claim for the flooring upgrade must be reduced by $861 to comport with his estimate, his mistake notwithstanding. [ 70 ] I agree also that while Mr. Grant has charged for electrical change orders to include puck lights and so forth, the rewiring of the wall oven and installation of the dishwasher hook-up are included in the scope of work. I accept the Rossanders’ proposed deduction for these items in the amount of $156. [ 71 ] I am satisfied that the remainder of the items charged as extras by Mr.

Grant do constitute extras and are, therefore, payable by the Rossanders. As such, I find Mr. Grant’s claim for extras to have been proven but for the following:

a) value of the tub and filler, et al, in the amount of $2,603.55;

b) value of the electrical in the amount of $156; and

c) excess flooring charge in the amount of $861. [ 72 ] These amounts, which must be deducted from Mr. Grant’s claim for extra work on the Main House, total $3,620.55. As such, the value of the extra work which I find has been proven in regard to the Main House totals $9,181.23. The parties agreed in correspondence that some but not all of these items would attract additional GST charges but it is not possible on the evidence before me to make that determination.

Rather than require the parties to engage in a calculation of what I find would be a nominal figure in any event, I intend to offset the value of the GST in this regard by denying Mr. Grant any court ordered interest on the compensation he will ultimately be awarded. [ 73 ] In addition to the extras, Mr. Grant is entitled to be paid for the amount held back by the Rossanders for work completed on the Main House in the amount of $4,669.80 for a total payment in regard to the Main House of $13,851.03.

However, from that figure must be deducted the value of the items the Rossanders purchased that were included in the Contract (the so-called “subtracts”) in the amount of $6,292.75, made up of items such as plumbing fixtures and carpet. Value of Mr. Grant’s claim including extras and excluding subtracts [ 74 ] In his email dated June 29, 2015, Mr. Grant invoiced the Rossanders for the value of extras to the Main House as well as the holdback in the amount of $17,471.58. When the subtracts totalling $6,292.75 and the items that I find are not extras totalling $3,620.55 are deducted, I find that Mr.

Grant is owed $7,558.28 for work on the Main House. I will address the value of the deficiencies in the Main House shortly as this too must be deducted from what is owed. Before that, however, I will address the claim for compensation for work in the Coach House. Mr. Grant’s claim for work in the Coach House [ 75 ] Mr. Grant’s claim for compensation for work in the Coach House as set out in his Notice of Claim totals $17,397.81. Mr.

Grant’s exhibit number 3 sets out the calculations for this claim in more detail; it shows a balance owing of $17,397.81 after the Rossanders are given a credit in the amount of $24,607.73. [ 76 ] This claim in turn is premised on a calculation set out in an email dated April 28, 2017, from Mr. Grant to the Rossanders. In that email, the Rossanders are advised by Mr. Grant that current work to that date completed but not paid equals $29,498.95. In their reply of the same date, the Rossanders do not dispute Mr.

Grant’s claim; rather, they ask him to confirm that only $21,352.87 remains outstanding on the fixed-price contract. [ 77 ] At trial the Rossanders asked Mr. Grant to, effectively, itemize this claim which Mr. Grant was unable to do. Still, the claim for monies owing for work on the Coach House is based on this figure and others set out in Mr. Grant’s email dated June 29, 2015. [ 78 ] I do not disagree with the observation made by Mr. Grant at trial that in the context of a fixed-price contract, it was not strictly necessary for him to keep or even keep track of all of his invoices or to itemize his costs.

His costs were his costs as he put it. The parties had agreed on a fixed price, contingent on certain work being done and paid for pursuant to the Draw Schedule. [ 79 ] I am satisfied on the evidence that Mr. Grant has proven he sought but was not paid for work on Draw 3 or Draw 4 and was well into completion of work on Draw 5 before his email of April 28, 2015. As such, Mr. Grant was owed well over $29,498.95 on April 28, 2015 and, as such, I have no difficulty with this claim. I find the Rossanders, similarly, had no difficulty with the amount claimed when they received Mr.

Grant’s email of April 28 except to confirm it meant there was only $21,352.87 remaining on the Contract and that that figure would include not only all of the remaining work under the scope of work but also the repair of all deficiencies in both the Main and Coach House. [ 80 ] In his email dated June 29, 2015, Mr. Grant calculated that as of that date, in addition to the $29,498.95 owing as of April 28, the Rossanders owed a further $12,506.59 which amount was itemized. In total, Mr. Grant advised the Rossanders he was owed $42,005.54.

From that he deducted $10,000 the Rossanders had paid him towards Draw 4 and $14,607.73 which amount the Rossanders calculated had to be subtracted from the Contract price pursuant to their email dated June 12, 2015 (the “list of subtracts”). This left the Rossanders owing Mr. Grant $17,397.81 on the Contract price - a figure that does not of course account for the cost of repair of any deficiencies. [ 81 ] Most of the items in the Rossanders’ list of subtracts, as Mr.

Rossander referred to it, are also listed in Exhibit 21 in a document entitled “Payment and Work Progress.” All of these items are again included in the Rossanders’ document entitled “Summary of Change Orders” attached to Exhibit 18. It bears noting that in June, 2015, Mr. Grant gave the Rossanders credit for plumbing items in the amount of $3,230.60 - the figure listed in their Payment and Work Progress document - though the Rossanders claimed only $813.75 for plumbing costs in their

Summary of Change Orders. [ 82 ] What is not included in the Rossanders’ Payment and Work Progress sheet, but is in their

Summary of Change Orders is a claim for several additional subtracts: those being a claim in the amount of $1,586.03 for the installation of more expensive insulation; a claim for $500 for the purchase of two toilets for the Coach House; a claim in the amount of $500 to reflect an error in the original amount quoted; a claim for $500 to account for the elimination of textured ceiling; and finally, a claim for $500 to account for changes to the framing size of the garage door.

Even though the items are for the most part rounded figures, I am satisfied the Rossanders have provided a basis for the numbers which total $3,586.03. [ 83 ] In his email dated June 29, 2015, Mr. Grant identified various extra work performed in the Coach House. In their

Summary of Change Orders document, the Rossanders accept extras in the Coach House totalling $4,680,50. Of Mr. Grant’s claimed extras, the Rossanders take issue with a claim in the amount of $635.45 which they say must be deducted from Mr. Grant’s claim for $2,500 for the installation of a shower in the Coach House because they provided fixtures and a shower door. [ 84 ] Mr. Grant disputes that claim noting that the estimate made no reference to fixtures. I find I agree there is no reference to fixtures in the scope of work for the Coach House. There is, however, reference to the installation of one four piece bathroom.

Assuming that includes the shower, I would expect that to also include a shower door. As such, I accept the extra charge should be reduced by the cost of a shower door but not the faucet. As I have no way of knowing what each cost, the claim should be reduced by some nominal amount to account for the value of the fixtures. [ 85 ] However, I find this exercise to be unnecessary. To a large extent, Mr. Grant has reduced the Contract price to account for a number of subtractions identified by the Rossanders on June 12, 2015. Their

Summary of Change Orders entered at trial adds an additional $3,586.03 to the $14,607.73 list given in June. Still, as I have said, their plumbing fixtures are much reduced from their earlier claim for which they have already been given credit. Moreover, as the Rossanders have noted in their

Summary of Change Orders document, the value of Mr. Grant’s extras which the Rossanders accept total $4,680.50. [ 86 ] As such, the Rossanders’ claim for subtracts over and above the amount set out in their June 12 email is less than what is owed to Mr. Grant for the value of extra work in the Coach House. It follows that the Rossanders are not entitled to any further reduction of the Contract price for work in the Coach House over that now claimed by Mr. Grant except what must be deducted to account for the cost of deficiencies. [ 87 ] Given these findings, I am satisfied that the Rossanders owe Mr.

Grant $17,397.81 as claimed for work on the Coach House which number must of course be adjusted to account for the cost to the Rossanders of repair of any proven deficiencies in the Coach House. [ 88 ] I now turn to address the Rossanders’ claims for deductions based on the alleged deficiencies. VI. The Rossanders’ Claim for Deficiencies [ 89 ] The Rossanders seek a reduction off the Contract price for work in the Coach House as well as the value of the extra work in the Main House for the cost of repairing what they assert are numerous deficiencies in Mr.

Grant’s work. [ 90 ] The Rossanders’ “Deficiency Log” was entered as Exhibit 19 in the trial. Exhibit 19 is comprised of a number of documents, some email correspondence and a document the Rossanders have labelled “Exhibit 48” which is their deficiency log, comprised of photographs and commentary. Also attached to Exhibit 19 is a document prepared by the Rossanders entitled “Summary of Costs to Rectify Defects/Deficiencies.” This document reiterates most of the deficiencies listed in “Exhibit 48” alongside the Rossanders’ estimate of costs and repairs.

I have utilized each of these documents to address the Rossanders’ claims of deficiencies. Where I refer to the “deficiency log” in these reasons I am referring to all of these documents. [ 91 ] Mr. Grant referred to the log as a “book” of deficiencies generated after the parties contractual relationship ended, many of which he disputed. [ 92 ] Certainly some of the items listed in the deficiency log were raised by the Rossanders while the Contract was ongoing and that fact is not disputed by Mr. Grant.

These deal largely, though not exclusively, with work on the Main House. [ 93 ] In these reasons, I will address the claim for deficiencies in the Main House first followed by a discussion of the claim for deficiencies in the Coach House. First, however, I think it useful to bear in mind the question what constitutes a “deficiency.” [ 94 ] Again, to refer to the reasons of Judge Doulis in McCrea v.

Fournier at para. 74 , quoting from Goldsmith on Canadian Building Contracts at p. 5 - 11 under the heading “Defective Work”, it is said that defective work is: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of such specifications is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach. ...

Whether work or materials supplied, is defective or not is, in each case, a question of fact depending on the constructions of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none. The ultimate burden is on the party asserting that a breach has occurred and at the end of the day, the Court must be satisfied on balance that the contract has been breached.

In civil cases the onus is on the party who asserts a proposition, usually the Plaintiff. [ 95 ] The Rossanders’ claim for the cost of repair of defective work and as such bear the onus of proving on balance that the work or material supplied failed to meet the Contract specifications or was otherwise not of a reasonable workmanlike quality. [ 96 ] In some instances, as I will discuss in more detail below, determining these myriad claims involves little more than interpreting the scope of work defined in the Contract. Even still, in some instances, it is not obvious the work falls short of the scope of work.

In other instances, particularly where the issue is one of quality of workmanship, the quality of the work can be adjudged utilizing the photographic evidence submitted by the Rossanders. In other instances, the alleged lack of quality is not so clear. [ 97 ] As I will discuss, there are a number of instances in which I find I am unable to determine that the quality of work fell short of the standard of care expected so as to constitute a deficiency.

Main House Deficiencies [ 98 ] In no particular order, but beginning with the most costly items first, the Rossanders’ claim for the following deficiencies in the Main House. The Railings [ 99 ] In an email dated December 17, 2014, the Rossanders expressed their general satisfaction with Mr. Grant’s renovation work in the Main House but for a concern about some painting and plumbing. They also sought to confirm with Mr. Grant that the en suite floor would be heated. With regard to painting, the Rossanders expressed a concern that the pillars in the media room had been painted. The

Rossanders maintained they had not wanted that work done. They added that “this is the second mistake by the painters (first being the stair railings). This will need to be fixed.” [ 100 ] Mr. Grant replied by email dated December 18, 2014, indicating that neither paint issue was a mistake. In particular, Mr. Grant wrote: The railings were painted at my request following our conversation re the existing stain being too dark. We discussed the cost of refinishing and decided paint instead. That was very early in the game but was a conversation we did have. [ 101 ] At trial, Mr.

Grant testified that he would not have asked the painters to paint the railings had he not been asked to do so by the Rossanders. In the context of a fixed-price Contract, this evidence makes good sense. [ 102 ] Still, the Rossanders have never resiled from their position that they did not ask Mr. Grant to paint the railings: rather, they had something quite different in mind. They seek $3,240 for the cost of remedying this deficiency. [ 103 ] The specifications, though quite detailed, are silent on the question of the stair railing. Clearly the specifications call for paint and the parties agree Mr.

Grant was intending to paint the stair spindles; at issue is whether he was also asked to paint the railing. The evidence in this regard is nearly equipoise though slightly in favour of Mr. Grant as I accept his evidence that he would not have painted the railings had he not been asked. As I noted, it makes sense in light of the fixed-price Contract, there being no upside to his carrying out unnecessary work. [ 104 ] I have stated at the outset that the Rossanders bear the onus of proving on balance their claims for deficiencies.

On balance, I am not satisfied I can find the painting of the stair railing constitutes a deficiency. The Shower Glass [ 105 ] Like the stair railing, this issue simmered for some time before the Rossanders finally terminated the Contract. At issue is the installation of glass shower doors in the en suite that the Rossanders find unacceptable. [ 106 ] The specifications for the en suite provide for the installation of a “6’ by 3’ shower pan with 2 sided 6 mil glass to ceiling…” By email dated February 27, 2015, the Rossanders advised Mr.

Grant that the shower glass installed was not what they had asked for as there was a frame along the top. They wrote they had specifically asked for a frameless one and provided photographs of examples of the kind they wanted. Mr. Grant replied on the same date, within about 20 minutes of the Rossanders’ email, that he had confirmed with the glass supplier that for their shower size and orientation the glass installed met the minimum Code requirement. The parties’ positions on this issue did not change up to the date of trial. As Mr.

Grant put it in one email, they had to agree to disagree on that item. [ 107 ] The Rossanders seek $2,066 for the estimated cost of replacing the shower glass installed by Mr. Grant. [ 108 ] As with the claim for the cost of repairing the stair railings, I find the Rossanders have not shown on balance that the installation of the glass in the shower in the en suite constitutes a deficiency. It was neither specified in the Contract nor has it been proven on balance that the work was not of a reasonable workmanlike quality. To the contrary, the weight of evidence supports Mr.

Grant; that is to say that what the Rossanders wanted would not have been Code compliant. In that regard, I found Mr. Grant’s observation that all of the photographic examples of shower glass shown to him by the Rossanders were distinguishable from the frameless shower glass they wanted installed in their en suite . The Rossanders have shown that frameless shower glass can be installed in some washroom areas but the evidence does not rebut Mr. Grant’s evidence, which I accept, that in this instance, a frameless shower glass enclosure would not be Code compliant. For these reasons, this claim too is dismissed.

The Floor [ 109 ] The Rossanders seek a reduction to the Contract price in the amount of $2,100 to repair wooden flooring which they maintain has buckled due to improper installation. The difficulty with this claim is that it has not been proven on balance that the buckling, which on the evidence appears in an isolated area near the door, was caused by faulty installation. [ 110 ] Certainly there is proof of buckling and that is contained in the Rossanders’ photos attached to the deficiency log. However, aside from pointing out the buckling, the Rossanders provided no proof it was caused by Mr. Grant.

The Rossanders’ last witness, Angus Stewart, an experienced tradesman, testified he noticed buckling in a large

section by the door. He agreed with Mr. Grant that it was not an installation issue but “most likely water introduced after.” Mr. Dale Knapp, who was called by Mr. Grant, testified also that the buckling was likely due to water leaking in from somewhere rather than having been caused by installation. [ 111 ] Given this evidence, I cannot be satisfied the Rossanders have proven on balance that Mr. Grant is responsible for the buckling. Remaining Items [ 112 ] The remaining items in the Rossanders’ deficiency list do, in my view, constitute deficiencies. These include items # 3, 18, 20 and 41 of the Rossanders’

summary of costs to rectify defects/deficiencies. Item #3, the cost of paint touch ups totals $500; item # 18, the attachment of the sprinklers, totals $250; and item # 20, essentially more paint touch ups, totals $100. I am unable to determine from the invoice given by JLS Electric the cost of adding an outlet in the kitchen. I am prepared to assign a nominal value of $75 to this item. The total value of deductions from what is owing to Mr.

Grant for work on the Main House in regard to these deficiencies is $925. [ 113 ] In addition, I am satisfied the Rossanders have provided a fair estimate for the cost of staining the front door in the amount of $1,800. This work was clearly intended to be within the scope of work in the Contract. It was not completed due to the termination, yet it is work that Mr. Grant contracted to complete. The Rossanders are entitled to this claim. [ 114 ] Given the modest nature of these deficiencies and the manner in which the Contract was terminated without giving Mr. Grant an

opportunity to address these deficiencies, I would not grant the Rossanders additional claims for garbage removal and project management fee overhead. [ 115 ] I found earlier in these reasons that Mr. Grant was owed $7,558.28 for work on the Main House. When the cost of repair of the deficiencies totalling $2,725 is deducted, I find that Mr. Grant is owed $4,833.28 for his extra work on the Main House. The Coach House [ 116 ] As with the Main House, the Rossanders have put into evidence a list of deficiencies in regard to the Coach House. Again, in no particular order, these are as follows.

Granite [ 117 ] The scope of work in the Contract provided that various cabinets and granite countertops would be removed from the Main House and repurposed for use in the Coach House. The Contract provided that “Granite is not guaranteed not to crack or break during removal or storage.” What occurred is that granite intended for repurposing in the second floor washroom of the Coach House broke after removal from the Main House but before installation. [ 118 ] In an email dated April 13, 2015, Mr. Grant advised the Rossanders that the granite was to be repaired. If the repair was unsatisfactory, Mr.

Grant wrote, the parties “could go from there.” In any event, as Mr. Grant also noted, the re-use of the granite came with no guarantees. [ 119 ] It seems clear from this correspondence that Mr. Grant intended to do what was necessary to make the repurpose work, but that he would not accept responsibility for the cost of new granite. [ 120 ] I do not see how, in light of the wording of the Contract, I can find Mr. Grant responsible for the cost of the repurposed granite. While it was never argued, I will assume the Rossanders interpreted the Contract to mean that if the granite broke, Mr.

Grant would pay for its repair or replacement. But, I find that the Contract is capable of an entirely different

interpretation and one that Mr. Grant articulated in his email dated April 13, 2015; that is, that Mr. Grant would not be responsible for any breakage of the granite as he attempted to repurpose it. For these reasons I would not allow the Rossanders’ claim for the cost of the granite countertop in the washroom in the Coach House. Bulkhead in the Kitchen [ 121 ] As the photograph at page 17 of the Rossanders’ deficiency log demonstrates, a bulkhead was constructed on the kitchen ceiling but did not extend far enough to cover a small, nearly adjacent piece of pipe.

The Rossanders were naturally enough concerned about the look of the exposed pipe. The matter was discussed by email dated March 24, 2015. In that correspondence, Mr. Grant advised of his intention to cover the area with a box enclosure rather than extend the bulkhead through the kitchen at an approximate cost of $750 and further delay. [ 122 ] The Rossanders took the view Mr. Grant needed to fix the issue at his own cost and in a manner that was aesthetically acceptable. They expected the bulkhead to be extended to cover the entire length of the wall.

They now seek compensation for the cost of repair of this deficiency. [ 123 ] In support of this claim, the Rossanders produced an invoice for work on the Coach House by Harris Homes. The invoice indicates Harris Homes carried out some drywall work in the kitchen. There is no direct evidence of the cost of this work though Mr. Rossander noted at trial that Mr. Grant had estimated a cost of $750 to bring the bulkhead out as fare as the Rossanders wanted. I have no evidence as to Mr.

Grant’s estimate for his suggested box over the pipe, though clearly it would have been an insignificant cost overall. [ 124 ] While I accept the exposed pipe near the bulkhead had to be concealed, I find there is insufficient evidence on which I could find the work done or proposed to be done by Mr. Grant to conceal the pipe fell below a standard of care such that I could categorize this as a deficiency. Mr. Grant testified on cross-examination that there is not a standard rule for back framing; rather, “you deal with each individual job.” [ 125 ] For this job, Mr.

Grant’s evidence was that traditionally he would not bring one bulkhead out for one small section. Mr. Campbell testified that he too had done “quite a bit of covering up” and that what Mr. Grant had done around the bulkhead was not unusual. [ 126 ] All of this is to say that the work at issue, and the proposed fix, is a question of the standard of care in the industry. The Contract itself does not speak specifically to this issue, nor could it.

As such, in order to prove this claim for a deficiency, the Rossanders need to show that the work was not of workmanlike quality - that it fell below the standard of care. The Rossanders argue that Mr. Grant’s proposal failed to meet their aesthetic requirements in the sense they did not want the work to “look like a reno.” [ 127 ] Even assuming Mr. Grant could be bound by this term, which is nowhere in the written Contract, I find there must still be some evidence on which I could objectively conclude that Mr. Grant had failed to meet this obligation. The Contract does not go so far as to bind Mr.

Grant contractually to create a product his clients like; though of course that is always preferable. Rather, Mr. Grant must provide a workmanlike product; and even still the product cannot be of such poor quality that it will be immediately obvious to any observer without more that the work is substandard. Absent any obvious evidence that the quality of work fell below this standard, I regret that I am unable to conclude on balance that Mr. Grant failed to meet his contractual obligations. [ 128 ] The Rossanders’ claim for the cost of repair of the bulkhead in the Coach House is denied.

Lacking any evidence as to the value of Mr. Grant’s proposed solution to the exposed pipe, I will assign a value of $100 to be deducted from the Contract price to account for the cost of this repair.

The Kitchen Window [ 129 ] The renovation plans in the Coach House provided for the repurposing of the kitchen cupboards and granite countertops from the Main House. The specifications provided for the . . . kitchen to be plumbed as per plan using under mount sink and faucet from existing house. Cabinets and granite from existing house to be used. [ 130 ] The plan attached to Exhibit 17 for the lower floor of the Coach House shows a window above the kitchen sink.

It is stamped “move & resize rough opening to suit existing kitchen from residence install new.” [ 131 ] As work progressed it became apparent to the parties that the plan was unsound largely because the movement of the window constituted a massive and expensive structural alteration. Mr. Grant took the position the alteration was outside the scope of work; the Rossanders disagreed. [ 132 ] By email dated June 9, 2015, the parties had agreed on a new layout for the kitchen. That would see Mr. Grant reconfiguring the kitchen cabinets so as to line up with the existing window.

It would also have necessitated the installation of new granite countertops as clearly the existing countertop would not be usable. [ 133 ] The email dated June 9, 2015, seems to confirm, as per a previous conversation between the parties, that Mr. Grant would “be taking care of the granite countertop that is necessary for this adjustment.” [ 134 ] The Contract was of course terminated before Mr. Grant was able to get to the kitchen cabinets. The Rossanders have since installed new cabinets and a granite counter top at the cost of $6,862.50 rather than reconfiguring the existing units from the Main House.

They seek compensation from Mr. Grant for the cost of this installation. [ 135 ] I fail to see the basis for this claim. The new layout agreed upon by the parties does not meet the definition of a deficiency. It is a change order to be sure and one that may well have cost Mr. Grant additional monies had the parties proceeded. In this instance, however, the Rossanders terminated the Contract and proceeded on their own. They could have proceeded along the lines agreed upon by the parties and reconfigured the existing cabinets; instead they chose to install new cabinets. Either way, Mr.

Grant cannot be held liable for this cost. [ 136 ] The claim for the value of the newly installed kitchen cabinets and granite countertop is denied.

Outside Trim, Closet and Laundry Doors [ 137 ] The Rossanders seek compensation in the amount of $10,529.11 for the installation of various doors including a coat closet door, a laundry room door and a door to the electrical room panel as well as for various repairs to outdoor trim which is alleged to be of substandard quality. [ 138 ] In regard to the latter issues, the Rossanders introduced a number of photographs of trim and facia board in various areas which are cut in such a way that large gaps are evident.

Clearly the Rossanders were dissatisfied with the work and produced an invoice from Harris Homes Ltd. for the cost of repair of these items. [ 139 ] I have no evidence of the standard of care expected in these circumstances. However, even a cursory view of the photographs would indicate faults with the work. Clearly, for example, shakes are missing beneath one of the windows. The Rossanders have produced photographic examples of properly installed facia board alongside clearly poorly installed board.

The trim in many places is obviously gapped leaving the prospects of water damage if nothing else. [ 140 ] I accept, even without expert evidence regarding the standard of care, that the quality of the outdoor trim as shown in the photographs at Exhibit 19 is deficient. Had the Contract not terminated as it did, Mr. Grant would have had to have addressed these deficiencies. I see nothing in the Harris Homes invoice to indicate the fees for these repairs are excessive. Rather, they seem modest assuming I have read the invoice correctly.

The Rossanders are entitled to deduct their costs for these repairs from the Contract price. [ 141 ] As best as I can discern from the Harris Homes invoice, the Rossanders were charged no more than $600 for this work. I am prepared to accept this was a fair estimate. More importantly, it is not one Mr. Grant took issue with. As such, I find the Rossanders are entitled to deduct $600 from the value of the Contract to repair these deficiencies. [ 142 ] The doors are another matter.

The Rossanders claim the installation of doors in the laundry room, coat closet and the door to the electrical panel are all deficiencies. [ 143 ] The Harris Homes invoice indicates that the laundry room was fixed with double doors, a bypass door on the main floor of the Coach House was replaced also with a double door and a bypass door system in the main floor washroom appears to have been replaced with a bifold system.

It is not apparent that this latter entry refers to the door on the electrical outlet in the bathroom on the main floor. [ 144 ] Despite their detail, the specifications do not address the type of door to be installed in the various closet areas in the Coach House. Still, as Exhibits 4 and 5 evidence, the building plan called for bypass doors for the bedroom closets and the laundry room. The Rossanders took the view the closet was to have a hinged door. [ 145 ] The parties do not disagree that sometime before June 5, 2015, Mr.

Rossander’s father suggested changes to the Coach House plan and, more particularly, asked that all bifold doors be replaced with bypass doors. Still, Mr. Grant assured the Rossanders that bypass doors in the laundry room would not work. In the event, Harris Homes installed double doors in the laundry room. [ 146 ] As Mr. Grant did observe in his email dated June 5, 2015, nowhere in the Contract or the plans for the Coach House is there

reference to double doors. As such, I am not satisfied the Rossanders have shown the installation of anything other than a double door anywhere in the Coach House constitutes a deficiency. Moreover, I cannot be satisfied on balance that the scope of work called for the installation of a hinged door in the Coach House closet. Again, I find the Rossanders have not proven this was a deficiency. [ 147 ] Mr.

Grant did not address the replacement of the bypass door in the lower floor washroom with a bypass system but nor is there evidence a bypass door system was improper, failed to meet Code requirements or the standard of care expected of Mr. Grant in the circumstances. For these reasons, I find no basis on which to hold that this constitutes a deficiency. The Rossanders’ claim for the cost of replacing the doors in the Coach House is denied. Laundry Room Repairs [ 148 ] In their

summary of costs to rectify deficiencies, the Rossanders claim the closet for the laundry was too small to fit the appliances. They allege also the wrong vent pipe was installed, the location of the plumbing box was incorrect, and that there was no insulation in the ceiling space.

The invoice from Harris Homes stipulates that: The laundry closet will have the ceiling drywall removed to allow the dryer vent to be replaced with smooth metal, insulated ducting, and the back wall drywall removed to allow for the dryer vent to be installed inside the wall and have the drain and water connection moved to one side for accessibility. [ 149 ] Harris Homes looks to have billed the Rossanders $780 for labour for work on the laundry area and material in the amount of $96.48. It is not possible to determine from this invoice how much of this cost is attributable to this repair.

In addition, I have some difficultly determining on the evidence before me that this work was the result of a deficiency. [ 150 ] However, the very nature of the work done by Harris Homes, particularly the installation of the dryer vent inside the wall, suggests an attempt to increase the size of the laundry room and, if so, this would indicate a deficiency in the work by Mr. Grant. On balance the evidence does suggest a deficiency and as such I award the Rossanders $876.48 for this repair. The Electrical [ 151 ] The Rossanders submitted an invoice from JLS Electric Ltd in the amount of $1,942.50.

They claim at least part of this invoice for the cost of repairs to electrical work conducted by Mr. Grant’s electrical contractor, Cameron McLeod. [ 152 ] Mr. McLeod testified on behalf of Mr. Grant. Mr. McLeod testified that he has yet to be paid for at least some of his work on the Contract and had filed a lien on the Rossander’s property though it was not apparent at the time of trial whether that had been removed. In any event, Mr.

McLeod testified that when he left the project site he had substantially completed his electrical work in that he had completed all the rough in and finishing work except for work in the kitchen. He acknowledged that if another electrician were to step in to complete the job, he or she would need to spend some time determining what he had done on the job. [ 153 ] The Rossanders called James Lean, an electrical contractor for JLS Electric. Mr. Lean testified that he finished off the electrical work on the Coach House that had not been completed.

Specifically, he recalled installing light fixtures, miscellaneous receptacles, a stove top in the kitchen and attending to the repair of some items that were not working. [ 154 ] Mr. Lean agreed on cross-examination that the primary roughing in was complete though there was no wiring in the kitchen and the appliances were not installed. As for repairs, Mr. Lean recalled finding one instance in the upper floor of the Coach House of a circuit that was not connected internally. Mr.

Lean estimated the value of his repair work to be approximately $300 for time and material. [ 155 ] I find the Rossanders have proven on balance they are entitled to $300 for repairs to electrical deficiencies in the Coach House. The Broken Window [ 156 ] The Rossanders seek $525 which is the quote given them by Mr. Stewart of TimberHawk Home Builders for the cost of replacing a broken window in the Coach House. In testimony, Mr. Stewart indicated this was a quote to replace the entire window and that he could not recall the damage that was done. He agreed with Mr.

Grant that if the repair was to address only a crack in the window the repair would not be as extreme. Still, Mr. Stewart could not say whether the cost would be less than that estimated. [ 157 ] On the evidence before me, I am able to conclude only that a window was broken, that it was the responsibility of Mr. Grant, and that an estimate for repair is $525. On that basis, I find this cost in this amount must be deducted from the value of the Contract for work on the Coach House.

Summary of Deficiencies in the Coach House [ 158 ] Doing the best I can with the evidence before me, I have found the Rossanders have proven deficiencies in the Coach House totalling $2,401.48. [ 159 ] Given my findings regarding the termination of the Contract, I would not award the Rossanders’ claim for project management fee and garbage removal. [ 160 ] Mr. Grant claims $17,397.81 for work on the Coach House up to the point of termination. I find that amount must be reduced by $2,401.48 to account for the value of deficiencies. [ 161 ] As such, Mr. Grant is owed $14,996.33 for his work on the Coach House.

Still, that must be further reduced to account for value of the wall oven. VII. The Wall Oven

[162] It is conceded that during renovation work, one of Mr. Grant’s contractors broke an existing wall oven the Rossanders intendedto repurpose in the Coach House. Mr. Grant immediately acknowledged responsibility for the cost of either repair or replacement of theunit. However, the matter was not resolved before termination. [163] The waters were muddied somewhat as the Rossanders pressed to include this cost in their deficiency list though it had nothingto do with the scope of work.

The wall oven is not a deficiency; rather it is property belonging to the Rossanders that was broken in thecourse of renovation work and for which they are entitled to compensation. [164] The issue in regard to the wall oven is how to assess the value and thus the damages award in favour of the Rossanders. [165] To that end, the Rossanders introduced into evidence an extract from a website showing the value of a new wall oven in theamount of $4,399 (USD). The Rossanders seek to augment this amount to cover the cost of currency exchange, taxes and delivery.

Intotal, the Rossanders seek well over $6,000 for the value of replacement of their wall oven. [166] Mr. Grant produced no evidence regarding the value of the wall oven. He submitted it was unfair to require him to compensatethe Rossanders for the value of a new oven when what was broken was an older model. Although Mr. Grant initially indicated anintention to have the oven door repaired, that was not done and there is no evidence before me as to whether it could be done and, if so,at what cost. [167] Still, there is something to Mr.

Grant’s objection that if the Rossanders’ claim for the value of the replacement oven is granted,they will be better off than they were before the oven was damaged. Although neither party was able to determine the age of the oven, itis clearly an older model and the Rossanders will benefit from the additional life expectancy of the new model. [168] Moreover, although the Rossanders provided evidence of the cost of a wall oven purchased in the United States, they directedMr. Grant locally to Trail Appliances.

It is apparent on the evidence that it would be possible to source the wall oven locally although Ihave no evidence that it would be cheaper than the U.S. model. [169] As my brother Judge Woods noted in Fudge v. Owners, Strata Plan NW2636, 2012 BCPC 409 , 2012 BCPC 0409, atpara. 85, in general, damages in cases such as this should be such as to put the plaintiff in the position he or she would have been had thetort not occurred.

The second is that the damages awarded must be reasonable to both the plaintiff and to the defendant. [170] In Fudge, the plaintiff sought damages for the value of a new carpet to replace a much older carpet that had been damaged byfault of the defendant. Taking into account the benefit to the plaintiff of replacing an old carpet with a new one, Judge Woods discountedthe damages award by 10% to offset the cost of the betterment. [171] As noted in Fudge, these discounts are difficult to fix; they are of necessity imprecise.

Still, to be fair to both the claimants andthe defendant in this case (on the counterclaim) I find it appropriate to reduce the Rossanders’ damages award for the value of thereplacement of their wall oven. I accept the best evidence before me is that the wall oven could cost as much as $6,000 but only ifpurchased in the United States. Accepting, as I do, that there must be a local source, I would award the Rossanders the sum of $5,000for the value of the replacement of their broken wall oven. [172] As such, Mr. Grant is entitled to compensation for work performed on the Coach House in the amount of $9,996.33.

VIII. Conclusion [173] I had earlier granted Mr. Grant $4,833.28 for his work on Main House. In total, for both projects, I find that Mr. Grant is owed$14,829.61. I have declined to grant court ordered interest for reasons given above. [174] As success was varied, I order that each party must bear their own costs. L. Mrozinski Provincial Court Judge